Asteroid mining and other space resource issues have caused some debates about the relevance of the Outer Space Treaty in the modern era. (credit: Bryan Versteeg/Deep Space Industries)

Why the Outer Space Treaty remains valid and relevant in the modern world

by Cristin FinniganMonday, March 12, 2018

Presently, humanity is releasing a rapidly progressing technological wave, and commercial “NewSpace” ventures seem to be riding the crest. In September 2017, SpaceX presented a design for its BFR vehicle, upon which it plans to launch cargo and eventually crewed missions to Mars with the goal of building a civilization on the Red Planet.1 Two United States-based companies are planning future asteroid resource mining operations: Planetary Resources, founded in 2008, will attempt to scout potential harvesting sites for water,2 while Deep Space Industries, founded in 2013, has similar plans.3 Blue Origin4 and Virgin Galactic5 are looking to bring passengers to outer space as tourists, and Bigelow Aerospace6 hopes to build expandable space modules for commercial and governmental use.

These activities are far from those of the Cold War era, when the United States and Soviet Union fought for dominance in, among other areas, spaceflight, including which nation would be the first to send people to the moon. As technology and capability has radically improved in the years since the Space Race, the political climate and legal landscape have changed, as well.

It has been said that the OST is a direct product of the Cold War and “primarily addresses concerns of that era.”

In 1967, during the height of the Cold War, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty, or OST) was drafted to ensure outer space would be available for “exploration and use” by “all countries,”7 and that the “Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.”8 Despite the fact that the OST contains sometimes-undefined terms and vague language, it remains valid and relevant to today’s commercial space activity, and should continue to exist as it stands for a key reason: national legislation can be drafted to clarify activities that are not directly addressed in the OST, but do not appear to be explicitly prohibited.

It has been said that the OST is a direct product of the Cold War and “primarily addresses concerns of that era,” which includes, according to Rep. Jim Bridenstine (R-OK), nuclear proliferation.9 Joanne Gabrynowicz, professor emerita at the University of Mississippi School of Law, explains the OST “mentions ‘nongovernmental agencies’ only once… [a]nd because of that oversight, there is no U.S. agency with jurisdiction of on-orbit authority.’”10 Issues, or “gaps,” such as these, plus the fact that certain terms remain undefined or vague, would only likely be fully addressed if the UN amends the existing OST or drafts new treaties.11 However, “in the current political climate, there is little political will or interest in new treaties;” Gabrynowicz further explains it appears that “[national] legislation and regulation is the only plausible avenue for modernizing the legal framework in outer space right now.”12

Another possibility for “revising the rules for space operators” could be the implementation of “soft law,” or rules and guidelines as opposed to binding legislation.13 These rules would set “standards of conduct for agreeing parties,” and the policy would work because “it is in the interest of all parties to abide by it.”14 The peaceful use of outer space, governmental oversight of commercial actors, and resource extraction are in the interest of all parties involved in space activity; even those who do not conduct space mining operations could benefit from the resources acquired by that industry. However, because soft law is not binding and does not “have teeth,” it appears that national legislation is the best way to accomplish clarification of activity under the OST.

Because of the recent emergence of space resource extraction endeavors, two of the most-discussed Articles of the OST are Articles II and VI. Article II states: “[o]uter space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”15 Article VI states, “States Parties to the Treaty shall bear international responsibility for national activities in outer space... whether such activities are carried on by governmental agencies or by non-governmental entities,” and non-governmental activity requires “authorization and continuing supervision by the appropriate State Party,” which means a State must have a form of licensing process for its commercial space actors.16

While national appropriation of space, including celestial bodies, is not permitted, clear prohibition of harvesting resources is absent.

In one of the more hotly-debated issues in space law, Article II of the OST appears to prohibit space resource extraction. Celestial bodies are not subject to “national appropriation,”17 but what is “national appropriation?” If a commercial entity is conducting operations in outer space, can they be considered “national activities” because Article VI’s “authorization and supervision” clause hooks them into State oversight? Does State oversight make commercial space activity inherently “national”? Now that the potential for certain NewSpace companies to extract resources from asteroids or the Moon is becoming a reality, should we amend the OST to clarify and verify space mining is allowed? It may not be necessary. According to Andrew Lintner,

just because a government is authorizing and supervising an entity engaged in extraction does not mean [extracting] space resources would necessarily amount to national appropriation. Article VI merely requires that States monitor the activities of its entities, not that the monitoring State has property rights over the resources such entities extract.18

Thus, it could be argued that Planetary Resources and Deep Space Industries can proceed with their mining operations without concern they are somehow claiming “national appropriation” because they are not conducting national activity (the companies would still be subject to authorization and continuing supervision per Article VI of the OST and US law—the Commercial Space Launch Competitiveness Act of 2015—which both explicitly state resource mining activity shall not violate Article II and shall abide by Article VI).

Gabrynowicz notes in a letter to Congress that the law permits “appropriation by any other means,” as it allows the harvesting of in situ resources.19 Merriam-Webster’s website defines “in situ” as, “in the natural or original position or place”, 20 and mining in situ resources entails digging below the surface of a celestial body. Therefore, Gabrynowicz argues this is “appropriation by any other means,” and may be in violation of the OST.21 Additionally, Ricky Lee explains that because there appears to be State acceptance of a prohibition on claiming property rights in outer space, “it may be prudent to consider that, regardless of the appropriate interpretation to be given to Article II of the Outer Space Treaty, States and private nationals may not be able to claim or exercise exclusive property rights on celestial bodies.”22

Other analysis of language in the act indicates space resource mining does not violate the OST, as it expressly states no claims of appropriation or sovereignty may be made. While national appropriation of space, including celestial bodies, is not permitted, clear prohibition of harvesting resources is absent. Therefore, according to the International Institute of Space Law, “in view of the absence of a clear prohibition of the taking of resources in the Outer Space Treaty one can conclude that the use of space resources is permitted.”23

In a May 2017 hearing before the US Senate Subcommittee on Space, Science, and Competitiveness titled “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space,” several panelists offered opinions on whether the US should consider amending the OST or withdrawing altogether. All panelists were of the opinion that the OST should continue to stand.24 Laura Montgomery states Article VI does not create a burden to US commercial companies until Congress says it does, and regulatory bodies should not create a burden by creating a cumbersome licensing process; she believes the OST, itself, is actually “light-touch.”25

The OST has stood for 50 years, and while it is sometimes vague, it creates a good system under which we can progress.

The aforementioned law prohibits “national appropriation” of celestial bodies, and provides an avenue for authorization and continuing supervision under Article VI but intends to maintain the “light touch” and non-burdensome regulatory oversight. The law is a solid example of how national legislation clarifies how modern innovative commercial space activities can continue to develop while continuing to abide by the OST, and Montgomery’s interpretation that the OST is “light-touch” gives commercial space companies room to mature while continuing to obey international law.

As leaving the cradle of Earth becomes more of a reality, we must not only continue to develop the technology and capability to reach further into the stars, but also maintain order as we evolve. The OST has stood for 50 years, and while it is sometimes vague, it creates a good system under which we can progress. It allows room for State interpretation to encourage innovation, but provides law that prevents human endeavors in outer space from descending into chaos. There is no need to amend it or withdraw from it: we can simply continue to grow with it.

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies art. I, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

Cristin Finnigan is a Minneapolis-area paralegal and remote student in the University of North Dakota’s Space Studies Master of Science program where she specializes in space law and policy. She is the AIAA Region V Deputy Director - Public Policy and Twin Cities Section Public Policy Officer, and co-owner/manager of a local robotics fabrication shop. She is also a volunteer for JPL’s Solar System Ambassadors program and shares the story of NASA through education and outreach at schools, museums, and other events.